- Green Light Given For The Modernization Of Québec’s Environmental Authorizations Regime
- July 14, 2015 | Authors: Marie-Claude Bellemare; Marc Unger
- Law Firm: Borden Ladner Gervais LLP - Montreal Office
- On June 11, 2015, the Minister of Sustainable Development, Environment and the Fight against Climate Change, Mr. David Heurtel (the “Minister”) tabled in the National Assembly a green paper (the “Green Paper”),1 following up on the announcement made by the Minister on February 25th to the effect that the Environment Quality Act (the “EQA”) would be modernized.2 According to the Minister, the Green Paper is designed to modernize the environmental authorizations regime enacted by the EQA,3 in order to improve the regime, make it more coherent, simplify it, and increase its effectiveness.
Context and Vision
The environmental authorizations regime enacted by the EQA has for many years empowered the Québec Government to structure the environmental aspects of various activities which could or do impact the quality of the environment. According to the Minister, the environmental authorizations regime established by the EQA has not undergone an in-depth review since its adoption in 1972, notwithstanding economic and social developments in Québec, major progress regarding scientific and environmental knowledge, and the integration of the concept of sustainable development as a fundamental value for Québec’s society.
In the Minister’s view, the Green Paper is intended to update the environmental authorizations regime in order to provide Québec with a modern, clear, and optimized4 regime, while maintaining the highest standards of environmental protection.5 To that end, the Green Paper sets forth six objectives for the revision of the environmental authorizations regime as follows:
- Updating the Environmental Authorizations Regime - Strengthening the entrenchment of the fight against climate change and the 16 principles of sustainable development in environmental authorizations and structuring strategic environmental assessments (“SEA”).
- Concentrating Efforts on Projects Having Major Environmental Impacts - Adopting an approach to the environmental authorizations regime that is based on the environmental risk of a project, simplifying the authorization process for less risky projects, without, however, reducing the environmental requirements applicable, and increasing the capacity to react to exceptional situations.
- Simplifying and Clarifying the Processing of Applications for Authorizations and their Processing - Increasing the foreseeability and efficiency of the processing of applications for authorizations and the authorization process, proposing methods which could potentially improve the environmental impact assessment and review process (“EIARP”), including its public hearing or consultation phase before the Bureau des audiences publiques sur l’environnement (“BAPE”), and optimizing the ministerial authorizations regime.
- Improving Access to Information, Citizen Participation, and Transparency - Establishing new practices for the communication of information, making a greater amount of information available to the public, and diversifying the opportunities for public participation.
- Increasing the Rigor, Coherence, Uniformity, and Sharing of Information in the Evaluation of Applications for Authorizations - Continue to improve the rendering of high quality service within the Ministry of Sustainable Development, Environment and the Fight against Climate Change (“MDDELCC”), developing an evaluation process vis-à-vis certain quantifiable and measurable objectives (e.g.: timelines for the issuance of authorizations) and also determining indicators and targets relating thereto.
- Better Internalizing Costs - Improving the internalization of costs connected with the authorizations and activities of the MDDELCC in both regional offices and the other divisions of the MDDELCC, particularly through a review of the applicable fee schedule.
The Green Paper’s Seven General Orientations
The modernization of the environmental authorizations regime envisioned in the Green Paper is based on seven orientations:
- Climate Change - Include the fight against climate change in the authorizations process;
- Sustainable Development - Integrate more effectively the 16 principles of the Sustainable Development Act6;
- Environmental Risk - Strive to better modulate the environmental authorizations regime in relation to the environmental risk involved, without reducing environmental requirements;
- Transparency and Access to Information - Increase both the information available about environmental authorizations and the opportunities for the public to become involved;
- Processing the Authorization Applications - Simplify environmental authorizations and their review process;
- Provision of Services by the MDDELCC - Review the responsibilities of both the MDDELCC and project initiators; and
- Internalize Costs - Improve the internalization of the costs of the environmental authorizations regime within the MDDELCC and its resulting activities.
The Green Paper reviews the measures in Québec that seek to promote the reduction of greenhouse gases, particularly the 2013-2020 Climate Change Action Plan,7 the 2013-2020 Government Strategy for Climate Change Adaptation8 and the implementation of the Québec Cap and Trade System for Greenhouse Gas Emissions Aiowances.9 It clearly appears that the fight against climate change and the reduction of greenhouse gas emissions constitute an important objective for the Québec Government and the Green Paper reflects that reality.
In fact, in order to ensure that all projects be designed so as to take account of greenhouse gas emissions and to improve consideration of the risks and impacts of such projects on climate change, the Green Paper proposes introducing three measures to that end, namely:
- Designing tools to strengthen the capacity to take account of climatic risks in the entire authorization process - Designing tools (e.g.: guides, reference standards, guidelines, regulations) which will enable a project initiator to better design its project so as to take account of its impact on climate change, while also permitting a better grasp of the implications for climate change on its project in the EIARP and the ministerial authorizations process.
- In certain cases, subjecting activities involving significant implications for climate change to the EIARP - Taking into consideration the impacts of a project on Québec’s track record regarding greenhouse gas emissions and/or adaptation for climate change, as grounds for justifying the project’s opportune subjection to the EIARP.
- Strengthening the ministerial authorization process - Empowering the MDDELCC, following the filing of an application for authorization by the project initiator, to carry out an analysis and to seek information with regard to the project’s impact on climate change and thereafter, as need be, to determine conditions in the authorization issued by the MDDELCC, in order to limit greenhouse gas emissions and/or to provide measures for adapting to climate change. Those projects that are likely to have significant impacts on climate change or on the capacity of communities to confront such changes could also be subjected to a ministerial authorization.
The adoption of the Sustainable Development Act in April 2006 constitutes one of the measures taken by the Québec Government to establish an approach to development that takes into consideration the environmental, social, and economic dimensions of development activities, with a long-term perspective.
The Green Paper proposes entrenching the principles10 of the Sustainable Development Act in the EQA, integrating those principles into the environmental authorizations regime, and better structuring the development of SEAs. More particularly, the Green Paper proposes that:
- Structuring SEAs legislatively - The SEAs of government ministries and agencies could be structured through legislation. The governmental ministry or agency that would wish to establish a strategy, a plan, or a program in a sector or in a given region might therefore be called upon to conduct a SEA, possibly accompanied by public consultations. At a later date, the government ministry or agency would take the SEA into consideration, as well as the results of any public consultation, in finalizing its strategy, its plan, or its program. It is envisioned that the MDDELCC would manage a public register containing information relating to all SEAs carried out in Québec.
- Adapting the environmental authorizations process to the projects resulting from its strategy, a plan, or a program already assessed in a SEA - Projects resulting from a strategy, a plan, or a program which had already been the object of a SEA could benefit from the knowledge thus acquired by the government ministries and agencies. The justification of a project and/or certain characteristics of a project would already be known to said ministries and agencies and the applicable environmental authorizations regime could be adapted accordingly (e.g.: a simplified guideline, impact study with more targeted public consultations or predetermined condition
Under the present environmental authorizations regime, there are two main categories of authorizations applicable to Southern Québec,11 namely:
- Governmental Authorization Regime - This regime presently applies to projects whose environmental risks are deemed to be high. A list of projects governed by this criterion is already expressly provided for in the Regulation respecting environmental impact assessment and review.12 The projects listed therein, and only those projects, are subject to an EIARP set forth in Sections 31.1 and following of the EQA. The Québec Government has no power to subject other projects to the EIARP without amending the Regulation respecting environmental impact assessment and review. It must be remembered that the EIARP may, in particular, entail the holding of public hearings by the BAPE. A certificate of authorization for the project may be issued thereafter by the Québec Government. Such a certificate of authorization, in fact, represents one of the first stages in the carrying out of the project. The project initiator must then obtain the other ministerial authorizations required under the EQA for the purposes of building or operating the said project.
- The Ministerial Authorizations Regime - This regime governs a multitude of authorizations (e.g.: certificates, attestations, permissions, approvals, permits, etc.) that may be issued by the Minister for a project, as provided for by the EQA13.
The level of environmental risk of a project would be first identified by regulation. As a result, the assessment of a project’s risk level would not be done on a project by project basis. The Green Paper proposes the creation of four categories of risks: high, moderate, low, and negligible.
- High Risk Activities - The Green Paper proposes maintaining the governmental authorization regime and consequently aims to maintain the application of the EIARP to projects entailing high risks for the environment. A first review of the projects contemplated by the Regulation respecting environment impact assessment and review would be carried out, however, with other periodic reviews thereafter, in accordance with a procedure that would be eventually provided for by the EQA.
On the other hand, and contrary to what is presently provided for in the EQA, the Green Paper proposes that the Québec Government have the power, in exceptional cases, to subject a project to the EIARP even if it is not contemplated by the Regulation respecting environmental impact assessment and review. An Order in Council would, however, be required to give force of law to such a decision.
- Moderate Risk Activities - Projects entailing moderate risks for the environment would remain subject to the ministerial authorizations regime, as amended by the implementation, in whole or in part, of the proposals of the Green Paper. If not covered by regulation (e.g.: a project not subjected to the EIARP or not identified as being a low or negligible risk project), a project would be considered as being one entailing moderate risks.
- Low Risk Activities - Projects representing low risks for the environment would no longer be subjected to the ministerial authorization regime proposed by the Green Paper. Rather, the Green Paper proposes that projects entailing this level of risk be governed by the production of a “declaration of conformity” by the project’s initiator. For example, for projects governed by regulation, the project initiator would be called upon to certify the project’s compliance with the EQA and its regulations, in a manner similar to what is provided for regarding attestations of environmental conformity under Division X.1 of Chapter I of the EQA or to the project notices/attestations of conformity provided for in the Agricultural Operations Regulation15.
- Negligible Risk Activities - Projects representing negligible risks for the environment, as determined by regulation, would be completely withdrawn from the environmental authorizations regime, but would remain subject, however, to applicable regulatory standards. Nevertheless, in certain cases provided for by regulation, a “declaration of activity” might nevertheless be required. In this regard, in relation to said “declaration of activity”, the Green Paper provides no particulars regarding the potential form and contents thereof.
4) Increasing Available Information Concerning Authorizations and Opportunities for Public Involvement
The Green Paper specifies that despite the existence of certain mechanisms providing for access to information and public consultation, the transparency of the environmental authorizations regime, its accessibility by the public, and the availability of information to the public could be improved.
With these objectives in mind, the Green Paper particularly proposes:
- Improving the content of ministerial authorizations and to render them available to the public - Making available ministerial authorizations on the MDDELCC website and also improving their content in order to include additional information dealing with conditions of an environmental nature, information of interest to the public, and environmental follow-up programs that are to be carried out.
- Improving the existing register for low risks activities - Adding to the public register of applications for ministerial authorizations, which is already accessible to the public on the Web, information concerning declarations of conformity for low-risk projects.
- Creating a register of environmental assessments - Creating a new environmental assessments register for all projects subject to the governmental authorization regime, accessible to the public on the Web, and containing (inter alia) all the documents presently made public by the BAPE during the information and project consultation period, any additional information sent by the project initiator, the environmental analysis report and the government’s decision taken by Order in Council, reports on follow-up actions filed during the carrying out of the project, and documents transmitted to the MDDELCC in regard to applications for the amendment of Orders in Council.
- Consulting the public before the EIARP - Motivating the initiator of a project presenting high risks to consult citizens before beginning procedures with the MDDELCC and the results of such consultation should be reported in the project notice filed by the initiator. Furthermore, promoting the possibility for citizens to express their views, through the environmental assessments register, on issues to be considered in the impact study, and the results of such consultation should also be considered in the initiator’s impact study.
- Better defining recourse to a public hearing - Promoting the involvement of citizens before the BAPE, not only through its public hearings, but also through alternative methods of consultation and through environmental mediations, a mechanism which would be enacted within the EQA. In addition, developing the notion of “frivolity” provided for in the EQA in order to refuse the holding of a public hearing.
- Providing methods complementary to the existing process of participation before the BAPE - Various measures are provided for: (i) enacting in the EQA the mediation process developed by the BAPE; (ii) beginning the holding of a public meeting as soon as the impact study is deemed to have been completed by the MDDELCC, without it being necessary to first hold an information period and public hearing on the project, particularly in view of the establishment of the environmental assessments register; and, (iii) exploring how the BAPE’s means of intervention could be diversified and studying whether rules governing BAPE mandates could be amended in order to permit it to better adapt to the nature of the mandates entrusted to it (e.g.: making greater use of information and communications technologies in the holding of public consultations or publishing reports of BAPE commissions no later than five days after their filing with the Minister).
- Amending the process of selection of BAPE members - Providing for a method of selection and appointment of the BAPE members, including in particular the President and the Vice-President.
In order to reduce the number of authorizations required for any one project, to simplify and standardize the authorization and review process, to make project initiators and their consultants more responsible, as well as to facilitate the transfer of authorizations in cases of changes of operators, the Green Paper sets forth a series of important amendments with respect to the review process of ministerial authorizations.
The proposals in this regard may be detailed as follows:
- Establishing a single type of ministerial authorization - A project initiator would make only one application to the MDDELCC for its project and only one ministerial authorization would then be issued. The multiplication of authorization applications (e.g.: certificates, attestations, permissions, approvals, permits) to the MDDELCC would thus be avoided.
- Providing for a single, evolving ministerial authorization throughout the undertaking of the activity - A single ministerial authorization would evolve throughout the life of a project. Any subsequent amendment to the authorization would be registered as part of the single ministerial authorization.
- Regulating the Minister’s power to impose conditions - Upon the issuance, the amendment, or the renewal of a ministerial authorization, the Minister’s power to impose conditions (e.g.: implementing of an environmental follow-up program, filing a financial guarantee, performing a characterization study, etc.) would be regulated. For this purpose, the MDDELCC would develop administrative tools and regulations to specify the conditions that could be set, including particularly conditions adapted to a particular environmental situation in the absence of any regulatory standards and conditions that differ from existing regulatory standards.
- Simplify the transfer of authorizations - The transfer of authorizations could occur upon a notice from the transferor and the transferee to the Minister, including the declaration required under Section 115.8 of the EQA which provides for the disclosure of various types of information concerning the applicant for the authorization. After reviewing the declaration, the Minister could object to the transfer on any of the grounds set forth in the EQA.
- Simplifying the authorization process in cases of disasters - The Minister would have a separate power of authorization in cases of “major disasters”,16 either actual or apprehended, in order to permit carrying out works deemed necessary to ensure the safety of persons or to prevent major damages. The information or documents thus required by the Minister would be limited to a minimum, but the Minister could impose conditions on such projects, if needed (e.g.: filing reports or studies following such work). In addition, in the event of such a “major disaster” and if the work so required is subject to the EIARP, the Québec Government would have the power to withdraw such work from the EIARP, but the power to permit such work would be delegated to the Minister.
- Establishing a new process for low risks activities - Before the start of any project entailing a low risk for the environment, the new “declaration of conformity” would be filed by the project initiator and, after the expiry of the prescribed period, the project could begin, subject, however, to the potential powers of the MDDELCC to intervene (before or after the start of the project) to ensure the project’s compliance with the EQA or its regulations. The “declaration of conformity” would be nontransferable, however, if the activity concerned by said declaration was carried out by a new operator, that operator would be obliged to file a new “declaration of conformity”.
- Facilitating the carrying out of pilot projects - In order to promote the carrying out of pilot projects, the new ministerial authorization regime could trigger the imposition of certain conditions (e.g.: the term of the authorization and the follow-up activity to be undertaken) on the initiator of the pilot project to document the discharges connected to the new technology and, ultimately, to file an application for authorization that would include the information necessary for that purpose. In addition, the list of projects subject to the governmental authorization regime under the Regulation respecting environmental impact assessment and review would be revised, in order to permit the carrying out of pilot projects.
- Withdrawing negligible risk activities - A project entailing a negligible environmental risk would be completely withdrawn from any form of authorization, but its carrying out would be governed by regulatory standards.
The Green Paper envisages a series of measures that would have an impact not only on the documents and information which must accompany an application for an authorization, but also on the application’s processing, its lapsing and the period of validity of an authorization issued, and the conditions applicable when the activities so authorized terminate:
- Regulating the admissibility of an application for an authorization - Project initiators would be given greater responsibilities to make sure that they provide all documents and information within the required deadlines, failing which their applications would be declared inadmissible by the Minister. Under the new governmental authorization regime, the MDDELCC would have the responsibility of advising of the elements that it considers essential to respond to its guidelines and the project initiator would be obliged to respond thereto adequately. Under the ministerial authorization regime, applicants would be obliged to provide all of the documents required by the EQA and its regulations. However, the list of documents so required would be reviewed in order to be shortened. Moreover, professionals hired as consultants would assume greater responsibilities for ensuring that the project complies with the prescribed norms.
- Clarifying requirements, informing, and accompanying project initiators - The MDDELCC would be called upon to make more accessible the information that would enable project initiators to be aware of the requirements for their projects (e.g.: guides) and to provide more ongoing support, particularly in the form of start-up meetings between MDDELCC representatives and project initiators.
- Extending powers of denial - The Green Paper proposes that a project initiator would have the obligation of complying first with the conditions provided for in a previous authorization, if any, before a subsequent authorization would be officially granted. In consequence, in reviewing an application for authorization from a project initiator, the MDDELCC could verify whether the project initiator was in any situation of major noncompliance with respect to another authorization already granted. If such was the case, the MDDELCC could issue an authorization conditional upon the correction of the shortcomings identified, thus inviting the project initiator to regularize its noncompliance within a defined period of time. After the expiry of that deadline and if the project initiator still failed to regularize any major non-compliance, the MDDELCC could ultimately deny the granting of the requested authorization.
- Providing for the lapse of an authorization - For activities having a fixed term, the period of validity of an authorization granted could be clearly specified therein. Furthermore, an authorization could lapse if the work authorized was not completed or if the activities had not begun within the deadlines that would be prescribed by the EQA. The project initiator could, however, request an extension of the applicable deadline and the relevance of such an application would be assessed accordingly. Similar principles would be applied to the “declaration of conformity” of activities entailing low environmental risks, as well as for the carrying out of impact studies under the EIARP.
- Regulating the cessation of activities - Any holder of an authorization ceasing its activity would be obliged to leave the premises in good condition. The MDDELCC would have the power to require any information concerning such cessation. In addition, in cases of cessation, the holder of an authorization whose project would have an indeterminate term would be responsible for notifying the MDDELCC. The operator of a project entailing a low environmental risk, even if not the holder of a ministerial authorization, would have similar responsibilities.
Since 2008, in order to reduce discrepancies between costs and the goods and services provided by the MDDELCC under the existing environmental authorizations regime, the MDDELCC has applied the user-pays principle and has charged fees, established by a fee schedule,17 in an effort to render activities connected with these regimes self-financing.
The Green Paper proposes (i) to review that fee schedule in order to better reflect the new environmental authorizations regime, (ii) to increase the rate of selffinancing (presently at 45%) in order to better internalize the costs connected with the new environmental authorizations regime, and (iii) to introduce a separate rate for the opening of files when authorization applications are filed.
The tabling of the Green Paper by the Minister signals his desire to make substantial amendments to the existing authorization regime and to trigger a discussion concerning the modernization so envisioned, with said modernization not only having impacts for the carrying out and operation of projects, but also on the services to be rendered in support of such projects. For example, the practices of all affected stakeholders will have to be reviewed in the light of the proposed amendments.
The Minister has announced his intention of holding particular consultations on the Green Paper in a parliamentary commission to be convened in the coming months in order to permit a public debate on the proposed amendments. More specifically, the Committee on Transportation and the Environment has just announced that these consultations will take place at the National Assembly on August 31 and September 3, 4, 10, and 15, 2015.18
After that, a bill should be tabled in the Québec National Assembly by the Minister for study by its members, in order that the new environmental authorizations regime may be implemented,
according to the schedule proposed by the Minister, during the year 2016.
1 Ministry of Sustainable Development, Environment and the Fight against Climate Change (« MDDELCC »), Moderniser le régime d’autorisation environnementale et de la Loi sur la qualité de l’environnement : Livre vert : http://www.mddelcc.gouv.qc.ca/autorisations/modernisation/livreVert.pdf (last visited July 7, 2015).
2 MDDELCC, Press communiqué, Le ministre Heurtel dépose le livre vert sur la modernisation de la Loi sur la qualité de l’environnement (June 11, 2015): http://www.mddelcc.gouv.qc.ca/Infuseur/communique.asp?no=3178 (last visited July 7, 2015); MDDELCC, Press communiqué, Le ministre Heurtel annonce une modernisation de la LQE (February 25, 2015): http://www.mddelcc.gouv.qc.ca/infuseur/communique.asp?no=3115 (last visited July 7, 2015).
3 Environment Quality Act, CQLR c. Q-2.
4 Green Paper, Section “Vision”, p. 7.
6 Sustainable Development Act, CQLR, c. D-8.1.1.
7 MDDELCC, 2013-2020 Climate Change Action Plan: http://www.mddelcc.gouv.qc.ca/changementsclimatiques/pacc2020-en.htm (last visited July 7, 2015).
8 MDDELCC, 2013-2020 Government Strategy for Climate Change Adaptation: http://www.mddelcc.gouv.qc.ca/ changements/plan action/ stategie-adaptation2013-2020-en.pdf (last visited July 7, 2015).
9 Also known as the “carbon market”. MDDELCC, The Québec Cap and Trade System for Greenhouse Gas Emissions Allowances: http://www.mddelcc.gouv.qc.ca/changements/carbone/Systeme-plafonnement-droits-GES-en.htm (last visited July 7, 2015). See also in this regard the Regulation respecting a cap-and-trade system for greenhouse gas emission allowances, CQLR, c. Q-2, r. 46.1.
10 The 16 principles of sustainable development set forth in the Sustainable Development Act are the following: (1) health and quality of life; (2) social equity and solidarity; (3) environmental protection; (4) economic efficiency; (5) participation and commitment; (6) access to knowledge; (7) subsidiarity; (8) inter-governmental partnership and cooperation; (9) prevention; (10) precaution: (11) protection of cultural heritage; (12) biodiversity preservation; (13) respect for ecosystem support capacity; (14) responsible production and consumption; (15) polluter pays; and (16) internalization of costs.
11 Note: The EQA provides four separate environmental assessments procedures, depending upon the territory in which the project is located. Three of the assessment procedures affect Québec’s Northern regions and the fourth applies to Southern Québec. The Green Paper is concerned only with amending the environmental assessment process applicable to the latter region.
12 Regulation respecting environmental impact assessment and review, CQLR, c. Q-2, r. 23.
13 Section 22 (certificate of authorization); Section 24 (transfer of a certificate of authorization); Section 24.2 (administrative certificate combining certificates of authorization issued for one and the same project); Sections 31.10 to 31.40 (depollution attestation); Sections 31.51, 31.53 and 31.57 (approval of a rehabilitation plan); Section 31.75 (authorization for withdrawal of water); Section 32 (authorization for waterworks, sewers and the treatment of waste water); Sections 32.1 and 32.2 (permit for the operation of a waterworks and sewer system); Sections 32.9 and 39 (approval of rates imposed by the operators of private systems); Sections 41 to 43 (other authorizations for waterworks and sewer systems and water treatment); Section 48 (authorization for the installation of air purification equipment); Sections 53.6 to 53.27 (approvals of residual materials management plans, prepared by municipalities); Section 55 (authorization for residual materials elimination facilities); Section 65 (permission connected with the use of land used as a residual materials disposal site); Section 70.8 (authorization for the storage of residual materials); Section 70.11 (permit related to hazardous materials), etc.
14 In view of the absence of any regulation in this regard, this method of prior control has so far remained unused.
15 Agricultural Operations Regulation, CQLR, c. Q-2, r. 26, Sections 39, 40 and 41.
16 Within the meaning of Section 2 of the Civil Protection Act, CQLR, c. S-2.3, the term “major disaster” is defined as follows: “an event caused by a natural phenomenon, a technological failure or an accident, whether or not resulting from human intervention, that causes serious harm to persons or substantial damage to property and requires unusual action on the part of the affected community, such as a flood, earthquake, ground movement, explosion, toxic emission or pandemic.”
17 Ministerial Order concerning the fees payable under the Environment Quality Act, CQLR c. Q-2, r.28.
18 In order to obtain further information about these consultations, we invite the reader to consult the detailed schedule for the hearing, which however is subject to change: Québec National Assembly: http://www.assnat.qc.ca/Media/Process.aspx?MediaId=ANQ.Vigie.Bll.DocumentGenerique&under;105517&process=Default&token=ZyMoxNwUn8ikQ+TRKYwPCjWrKwg+vIv9rjij7p3xLGTZDmLVSmJLoqe/vG7/YWzz (last visited July 7, 2015).